Tim Kaine: Confirming Neil Gorsuch jeopardizes women's rights

By Tim Kaine

Updated 5:15 AM EDT, Wed April 05, 2017

Editor's Note: (Tim Kaine is a U.S. Senator from Virginia. He served as a federal appellate law clerk and then practiced civil rights law for 17 years in state and federal courts. The opinions expressed in this commentary are his.)

(CNN) I take the Senate's responsibility to assess Supreme Court nominees very seriously. I have met personally with Judge Neil Gorsuch, closely followed his nomination hearings, heard from thousands of my constituents and reviewed his many judicial opinions. A deep dive into his record reveals a jarring pattern: Judge Gorsuch has repeatedly taken an activist approach to a woman's right to make her own decisions about her health.

In 2013, Judge Gorsuch and his colleagues on the 10th Circuit Court of Appeals heard the Hobby Lobby case. This was a straightforward application of the Religious Freedom Restoration Act, passed by Congress to protect religious liberty. The question was whether a company could claim that its religious beliefs exempted it from providing certain types of birth control to employees as mandated by the Affordable Care Act.

The 10th Circuit found that the claim could go forward, and, in 2014, the United States Supreme Court agreed. The Court found that the company's sincerely held religious beliefs had to be protected.

Judge Gorsuch wrote an opinion concurring with the majority. It is most revealing. First, it stretched to find that the individual owners of Hobby Lobby could also challenge the ACA employer mandate even though they were not the "employer" to whom the mandate applied. More notably, while the majority opinion and the later Supreme Court ruling correctly described the legal issue as a clash between the employer's beliefs and the requirements of the ACA, Judge Gorsuch saw it differently:

"All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others."

"The wrongdoing of others"? Who are these "others," and what did they do wrong? They are the women who work for Hobby Lobby, and their "wrongdoing" was their desire to make their own choices about using contraception.

Moral questions of complicity in others' behavior had nothing to do with the legal question in this case. The only legal issue was whether the owner's beliefs about contraception conflicted with the ACA. So Judge Gorsuch's decision to inject his own editorial comment about women's "wrongdoing" was an insulting characterization of a personal choice protected by the law. His two uses of the phrase "all of us" also suggest that he was making a point far broader than what the parties to the case had presented to him.

In both cases, a panel of the 10th Circuit ruled in support of women's health access. The parties prepared to move on from the appeal and did not apply to have the case reheard by the entire circuit court. But in each case, Judge Gorsuch took the highly unusual step of urging a rehearing of the appeal even though the parties had not asked for it.

In the Planned Parenthood case, the parties had even returned to the lower court and settled the legal issue in question. Yet Judge Gorsuch sought to have the appeals court rehear the case anyway. Could there be anything more activist than trying to revive an appeal after the parties have moved on?

During his confirmation hearings, Judge Gorsuch was repeatedly asked whether he agreed with the Supreme Court ruling in Griswold v. Connecticut, which held that a state could not criminalize couples for using contraception. While acknowledging that the case was precedent and thus worthy of respect, he repeatedly refused to say whether he agreed with it. This stands in sharp contrast with Justices Samuel Alito and John Roberts, who had no trouble telling the Senate that they agreed with Griswold.

More than 60% of American women of childbearing age use contraception. The right to do so has been constitutionally protected for more than a half century. Since the Supreme Court first decided Griswold in 1965, the basic ruling has been repeatedly used to protect Americans' rights to privacy in their relationships from overreaching government intrusion.

That important development is in jeopardy if we confirm a Supreme Court Justice who has shown a clear pattern of activism against women's liberty to make their own reproductive health decisions.